Clay and Coombes

[2016] FCCA 3440

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLAY & COOMBES [2016] FCCA 3440

Catchwords:
FAMILY LAW – Undefended hearing – very young child – no relationship with father – family violence – sole parental responsibility – child to live with mother – no order for time with father.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001, r.16.05

Child Support (Assessment) Act 1989

Applicant: MS CLAY

Respondent: MR COOMBES

File Number: PAC 1293 of 2016

Judgment of: Judge Obradovic

Hearing date: 5 December 2016

Date of Last Submission: 5 December 2016

Delivered at: Parramatta

Delivered on: 5 December 2016

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondent: No appearance

ORDERS

1. The mother shall have sole parental responsibility for the child X born (omitted) 2016.

2. The child shall live with the mother.

3. X born (omitted) 2016 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2016. The mother shall be the only person with ‘parental responsibility’ of the child X born (omitted) 2016 for the purposes of applying for and being issued with, an Australian passport for X born (omitted) 2016.

4. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Clay & Coombes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1293 of 2016

MS CLAY

Applicant

And

MR COOMBES

Respondent

REASONS FOR JUDGMENT

1. On 22 March 2016, the current proceedings were commenced by way of Initiating Application filed by the Applicant mother in relation to seeking orders pursuant to the Family Law Act1975 for the declaration of parentage in respect of X, born (omitted) 2016. 

2. The matter was first before Judge Dunkley on 28 April 2016 when a number of orders in relation to service were made, including an order that personal service be dispensed with and an order for substituted service.

3. In compliance with the orders made on 28 April 2016, the Applicant served the Initiating Application, her Affidavit filed on 22 March 2016 and a sealed copy of the orders made on 28 April 2016. The Applicant filed an Affidavit in relation to proving service in accordance with that order in due course. The matter was next before the Court on 23 June 2016 following the filing of an Amended Initiating Application on 14 June 2016. On that day, orders in accordance with paragraphs 1 and 2 of the Amended Initiating Application were made namely, a declaration that the Respondent is the father of the child, and that he should be assessed pursuant to the Child Support (Assessment) Act 1989 in relation to the costs of the child. The matter was listed for an undefended hearing on 29 August 2016 in respect of the balance of the orders sought in the Amended Initiating Application.

4. Further orders were made for the Respondent to file and serve a Response and Affidavit and for the Applicant to notify the Respondent of the outcome of the hearing on 23 June 2016.  The Applicant complied with those orders and notified the Respondent in accordance with the orders made on 23 June 2016. 

5. On 29 August 2016, when the matter was listed for undefended hearing, the Amended Initiating Application filed on 14 June 2016 was dismissed summarily as there was no appearance by either the Applicant or the Respondent when the matter was called at 10.35am.

6. Subsequently and during the course of that morning, the Applicant mother arrived at Court and made an oral application to set aside the orders made earlier during the course of the morning. Consequently, pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the order dismissing the Amended Initiating Application was set aside and the matter was listed for directions on 2 November 2016 to be allocated a hearing date.  On 2 November 2016, the matter was set down for undefended hearing on 5 December 2016, being today’s date.

7. On that day also, the Court made an order for the mother to notify the father by text message to his last known mobile number of the listing of the matter for hearing today.  The mother has complied with that order and notified the father by text of today’s listing. Notwithstanding the notification to the father, not only in relation to the undefended hearing today but also in relation to all previous matters including service of the relevant applications that are currently before the Court, the father has refused and completely ignored the Court’s requests and orders for him to file material in relation to the mother’s application such that the Court would know what orders it was that the father sought in relation to the child of the parties.

8. What has occurred though is that recently on 30 August 2016 and since the matter was last before the Court, there was contact by a solicitor who purported to represent the Respondent which the mother received on her mobile phone. Subsequent to that call that was received by the mother, there was a telephone conversation between the mother and the solicitors at Delaney Lawyers and some correspondence between the Applicant and the solicitors who were representing the father on that occasion, or at least acting in accordance with instructions that they had received from him.

9. Nothing in that correspondence from Delaney Lawyers which is annexed to the mother’s Affidavit of 29 November 2016 indicates to the Court anything but that the father was aware of the current proceedings and, indeed, it appears that, notwithstanding the declarations that were made by this Court on 23 June 2016, the father was still seeking some parentage testing of the child, the subject of these proceedings.  However, that appears to never have been followed through by the father, whether directly with the mother or through the solicitors who were representing him at the time, being Delaney Lawyers. In any event, the Court is satisfied that the father has been accorded procedural fairness and that this matter should be dealt with on an undefended basis today. 

10. The parents were in a relationship from early April 2015 until August 2015. As a result of that relationship, the child X was born on (omitted) 2016.  The father has never met the child, nor has he ever made any attempt to see the child or foster a relationship with her. 

11. Indeed, the mother deposes in her Affidavit of 10 June 2016 that, during her pregnancy, the father had threatened to harm both the mother and the child, not only in person but over the telephone and via text messages. He said words to the mother to the following effect:  “I know people that can make you disappear.  You and the baby might just disappear.”  He also threatened the mother using the words to the effect of:  “If you bring that kid anywhere near me, I will just kick it or pick it up and throw it on the floor, so don’t think about bringing the kid to me.” 

12. The mother also alleges, and the Court accepts her evidence, that the father threatened her using the words, “You wait and see.  For as long as I can, I’m going to make your life difficult.”  He also indicated to the mother that she would not receive a single dollar out of him in relation to child support. The Court also accepts that the father emotionally and mentally abused the mother using words such as “I hope you and the kid get hit by a bus and die.  You and the kid are both sluts, bitches and dogs.  You should just go and kill yourself.” 

13. The Court also accepts the mother’s evidence that, after she witnessed a terrible event in (omitted) 2015, that is, a man that she did not know who committed suicide by jumping off the bridge at (omitted) in New South Wales, where the mother attempted to assist the man and prevent him from jumping, that the father would taunt her and say words to the effect:  “No wonder that man killed himself.  It’s your fault.  You would push anyone to kill themselves.  You should go and kill yourself.  I hope you and the kid both drop dead.”

14. The mother also asserts and the Court accepts her evidence, that the father physically abused her during her pregnancy with the subject child of the proceedings.  One such incident occurred on the night of 3 July 2015.  On that day, the mother attended at the father’s unit in order to collect some of her belongings.  On that particular night, the father had four of his children from his previous marriage spending the night with him at his unit.  He told the mother to wait outside of his building and handed her some of her belongings.  She noticed that some items were missing and asked the father to retrieve those items from his unit and return them to her.

15. The father then entered the building and the mother, as it was a very cold and windy night, entered the building and waited for the father in the foyer.  Upon seeing the mother in the foyer, the father swore at her and demanded that she wait for him outside of the building.  He then physically attacked her, spat in her face, punched her and pushed her and shoved her against the wall.  The mother was begging the father to stop as she was pregnant, however he would not stop.  He continuously grabbed her and threw the mother against the wall.  He yelled so loudly that one of his children, P, came out of the unit or rather stuck her head out of the unit door to see what was happening.

16. The mother then told the father that P was looking, at which point in time the father yelled at P, saying, “Get inside and close the fucking door.”  The mother then left the premises. 

17. The Court is satisfied, based on the mother’s evidence, that the father engaged in family violence against the mother and, for that reason, the Court is satisfied that an order for sole parental responsibility is appropriate in all of the circumstances. The presumption of equal shared parental responsibility has been rebutted.

18. The father also, after the child was born and after the mother’s attempts to get him to spend some time with X, responded with the words to various text messages such as, “If the child is mine, you can tell the little bitch that I don’t want to give a fuck about it or you,” In May 2016, the father sent the mother a text saying that “the child is a dumb slut like her mother” and that he hoped that both the child and the mother dropped dead.

19. Having regard to the primary and the additional considerations, but in particular the findings about family violence and the father’s lack of interest in the child and his attitude to the responsibilities of parenthood The Court is satisfied on the mother’s evidence that it is in the child’s best interest for an order that the child live with her and that no order be made in relation to the child spending any time with her father at present. 

20. The Court is also satisfied that it is in the child’s best interest for the mother’s application for the child to be issued with a passport and for the mother to be permitted to travel overseas with the child without having to obtain permission from the father be made.

21. For the reasons set out above all orders made are in the child’s best interest.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  5 December 2016